What Legal Recourse Do Police Have If Injured By Protesters

Concerned about the growing violent turn that Occupy Wall Street protests are taking, the president of the New York Police Department's Sergeant's Benevolent Association (SBA) released a statement after the Oakland incident announcing that lawsuits would be pursued against anyone who injured a police officer during the protest. President Ed Mullins indicated that more than 20 police officers had already been injured by the protestors and that he had instructed attorneys for the SBA to pursue the harshest possible civil sanctions against anyone causing injuries, including seeking monetary damages.

One of the biggest obstacles for parties wishing to sue for an injury sustained during a protest is a legal doctrine called assumption of the risk. This legal doctrine essentially states that if you do something known to be dangerous, you cannot then file a lawsuit if you suffer harm from the danger you were aware of before you acted.

Arguments have been made that police and firefighters assume the risk of danger when they go into their chosen careers. In fact, many court decisions have held that police cannot sue because of the assumption of the risk doctrine, and many states have passed statutes to that effect. Collectively, the rule against police lawsuits for injuries became known as a legal doctrine called the "fireman's rule" or "professional rescuers rule."

However, some states determined that, while police might assume some risks, they should not be barred from bringing civil lawsuits in all claims. In California, for example, California Civil Code Section 1714.9 carves out an exception to the fireman's rule allowing police officers to sue if a person willfully causes harm and if: 1) he knew the police officer was there; 2) his conduct violates a law and was not the reason that the police officer was called to the scene in the first place; and/or 3) the conduct was specifically intended to injure the police officer.

Under these rules, it seems clear that police officers could sue Occupy Wall Street protestors if those protestors are aware that police have been called in and if they willfully choose to harm the police officers responding to the call. The police, will, of course, have to prove that the personal injury case falls within the exceptions listed in the California Civil Code, explains a lawyer in the state.

By: Larry Drexel